Alex Jones Lawsuits: This Is Not a First Amendment Issue

The problem with being a world-famous conspiratorialist like Alex Jones is that there is no room for half-measures. Once you say that the parents of the children slaughtered at Sandy Hook Elementary School are frauds and actors, once you claim the young victims were not murdered by Adam Lanza but are still living, once you go after people at the worst possible moment in their lives, there's no retreat to the language of truth, reason or sensibility. And that is why Jones is in big legal trouble as three civil lawsuits against him proceed toward trial.

The latest case was filed earlier this week in state court in Connecticut by the families of six Sandy Hook victims and an FBI agent who responded immediately to the crime scene in Newtown, Connecticut, on December 14th, 2012. Jones is named as the main defendant, but there are many others on the hook, including companies that help Jones distribute his diatribes to audiences around the world. Let me make my prediction early: if this case goes to trial the defendants will lose and face enormous financial consequences.

The allegations in the complaint offer a comprehensive and wrenching account of what Jones and his fellow travelers have put these families through since December 2012. The threats. The harassment. The online abuse. The physical confrontations. Most of us have known for years what Jones was saying about Sandy Hook, but few of us have followed through to learn precisely what impact those words have had on their targets. The complaint fills in those blanks in grim detail. It reminds us of the pain Jones has caused, and continues to cause – and no ethical defense lawyer is likely to argue otherwise as this case proceeds.

The lawsuit has been described as a "defamation case" and it surely is that. The plaintiffs say Jones has defamed them by calling them liars and frauds. But the complaint also raises claims of invasion of privacy and the intentional infliction of emotional distress that ought to give Jones and company the most concern. The defamation claim gets the lawyers arguing over the complex "reckless disregard" standard that might apply in this case. But the other claims are more straightforward and they will give jurors several options if they choose to side with the plaintiffs.

The "infliction of emotional distress" claims are most compelling because the legal standard in Connecticut, and elsewhere, seems suited precisely for a case just like this. The judge or the jury will have to answer these key questions for starters: Did Jones and his fellow defendants intend to "inflict emotional distress" on the plaintiffs? If not, should Jones have known that such distress would result? Was the conduct of Jones "extreme and outrageous" and, if so, did the families suffer severely as a direct result? Did Jones's conduct involve an "unreasonable risk of causing emotional distress"?

Now put yourself in the shoes of a Connecticut juror, and then put yourself as that juror in the shoes of a parent who has just lost a kindergartner to gun violence in a classroom. Would you consider Jones' behavior "extreme and outrageous" if he falsely called you a "crisis actor" and said that you had helped fake your child's death? Would you think that Jones knew or should have known that such a claim would "inflict emotional distress" on you not just when he said it, or repeated it through the years, but when some of his millions of followers began to taunt you with it both online and in real life?

What are Jones' lawyers going to try to do about this during jury selection? Attempt to strike every parent from the pool? Ask jurors about government weather control and the Illuminati? No judge is going to tolerate that. And as a juror in this case you won't even need to be a parent to be struck by how cruel the alleged conduct is here. Jones and his cohorts took victims and victimized them again. They took from these families more than what already had been taken from them by the killer. And for what? The plaintiffs say for money, lots of it, and for kicks.

Jones says that he is the victim here, of defamation and a conspiracy no less, and he evidently plans a "First-Amendment defense" to the claims against him. It's hard to see how that is going to work as a matter of law. "The First Amendment wouldn't protect Alex Jones from statements claiming victims' parents are liars," says Ken Paulson, president of the First Amendment Center. "If the parents are determined by a judge to be public figures they would have to prove that Jones either knew his allegations were untrue or recklessly disregarded the facts. There's a plausible path for the parents to prevail."

What Paulson is saying is that even if somehow the defendants win an early legal argument about which defamation standard ought to apply in the case, they are unlikely to prevail. It's possible that these families would be considered by a judge to be "public figures" under the state's defamation law – although the plaintiffs will argue that Jones shouldn't be rewarded for essentially turning them into public figures with his conspiracy theories. But it is much more likely that they will be considered private actors and that will make it easier for them to prove that Jones defamed them.

And that's essentially what the plaintiffs contend in the body of the complaint. "Like any marketplace, the marketplace of ideas that the First Amendment was meant to protect cannot function properly without accountability for reprehensible conduct like the defendants," the lawyers wrote. "The First Amendment has never protected demonstrably false, malicious statements like the defendants.'" I was stuck hard, though, by what the plaintiffs' attorneys wrote earlier in the complaint: "Alex Jones does not in fact believe that the Sandy Hook shooting was a hoax – and never has."

A conspiratorialist who didn't believe his own conspiracies! An alleged defamer who alleges defamation. Who knew? Having made my early prediction, let me now offer some unsolicited advice for the defendants: Given the state of the facts and the law, and given how trial jurors are likely to perceive the equities of this case, the smartest thing Jones and the defendants could do is settle this case as soon as possible, even if it means paying the plaintiffs and apologizing to them on and off the air. But that's another problem with being a conspiratorialist like Alex Jones. It means never having to say you are sorry, even if the judgment of law and history concludes you are.

The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.